Post details: U.S. Border Patrol Responds To Questions In Washington State

2009-01-17

In May of 2008, I highlighted an article regarding the use of Border Patrol checkpoints at domestic ferry's off the coast of Washington State. More recently, I've highlighted the continued expansion of Border Patrol activities into Washington State with so-called tactical checkpoints along public highways no where near the border along with the ensuing uproar from local residents adversely affected by such police state actions.

[More:]

Thanks to a link in a recent article from Disloyal Opposition, it appears that the Border Patrol's Blaine Sector leadership responded to a list of questions from the San Juan City Council regarding the domestic ferry checkpoints. Given the close correlation to what the Border Patrol is doing in Washington State and my own experiences with suspicionless checkpoints in Southern Arizona, I wanted to take a closer look at a few of the Border Patrol's responses to the city council's questions.

The first question and response highlighted is:

"11. Am I required to answer the agent's questions at the checkpoint?"

"No person can be required to give evidence that incriminates themselves - that is a constitutional right. Neither can any public official compel or coerce such a statement if the person being questioned refuses to give one voluntarily..."(continued below)

This is a good response given that the Supreme Court has ruled every checkpoint stop represents a seizure within the meaning of the 4th amendment and every question asked while being seized is investigatory in nature:

"The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest."
- U.S. v. Brignoni-Ponce

"It is agreed that checkpoint stops are 'seizures' within the meaning of the Fourth Amendment."
- U.S. v Martinez-Fuerte

"The Court assumes, and I certainly agree, that persons stopped at fixed checkpoints, whether or not referred to a secondary detention area, are "seized" within the meaning of the Fourth Amendment. Moreover, since the vehicle and its occupants are subjected to a "visual inspection," the intrusion clearly exceeds mere physical restraint..."
- U.S. v Martinez-Fuerte

After admitting individuals can't be compelled or coerced to answer questions while being seized at internal suspicionless DHS checkpoints, the Border Patrol goes on to admit they routinely attempt to compel or coerce a response through veiled threats of 'further investigation' and 'arrest' for not answering investigatory questions:

"...However, the law is quite clear that agents can interrogate any person who is an alien or who the agent believes to be an alien as to his right to be or remain in the United States. A refusal to answer could be construed as an articulabel fact supporting a level of suspicion to further investigate and possibly to arrest, depending on the totality of the circumstances at hand."

Given that one definition of coerce is to dominate or control by exploiting fear or anxiety, it should be clear from the second part of the Border Patrol's response that this is exactly what they are doing by first admitting you have a right to remain silent but then insinuating that you can be further investigated and/or arrested for actually exercising that right.

Over the past year, I've been putting this Border Patrol policy to the test. I can assure you, the Border Patrol does indeed use coercive techniques in an attempt to compel responses to their questions. These coercive techniques have included, but are not limited to, extended detention, threats of arrest and most recently collusion with local authorities to maliciously cite me for allegedly impeding traffic while being seized by armed federal agents in front of two temporary stop signs.

I also found the Border Patrol's general response regarding what individuals can expect at a checkpoint rather interesting:

"9. What can I expect at a checkpoint?

You will be greeted by a uniformed Border Patrol agent who may ask basic questions such as: "How are you today?" or "Where are you going?" etc. You will be expected to state your nationality and citizenship and could be asked to provide identification. If the agent is satisfied that there is no suspicion as to your right to be or remain in the United State, he/she will thank you for your cooperation and allow you to proceed. The entire interaction usually takes less than 30 seconds.

If further information is needed, you may be asked to pull aside to a secondary inspection area. A brief interview will occur, usually less than two minutes in length. This may involve records checks. Unless information is disclosed requiring further action, you will be thanked for your cooperation and allowed to proceed."

Referring back to the first question, the Border Patrol admits an agent must believe the individual being interrogated is unlawfully in the United States. While operating away from the border or its functional equivalent, merely being suspicious is not enough of a legal basis to further a detention or interrogation. In fact, at an internal checkpoint, the Supreme Court ruled agents MUST have probable cause or consent in order to extend the detention or to search. If an agent diverts a vehicle to secondary for further scrutiny after asking the immigration question, that represents an extended detention and must be premised on probable cause:

"...We have held that checkpoint searches are constitutional only if justified by consent or probable cause to search....And our holding today is limited to the type of stops described in this opinion. -[A]ny further detention...must be based on consent or probable cause." - U.S. v Martinez-Fuerte

Additionally, the Customs and Border Protection Field Manual indicates reasonable suspicion is needed in order to detain. While not in compliance with Supreme Court jurisprudence on the matter, reasonable suspicion still rises head and shoulders above the 'mere suspicion' threshold referred to in this response.

The final question/answer pair highlighted from the San Juan City council appears below followed by the full list of questions and answers:

13. Can the agents search me or my car at the checkpoint?

An agent can make a visual inspection of a vehicle insofar as what is ordinarily visible from outside the vehicle. If they see something that constitutes a clear and present danger to themselves or others, they may act immediately and without a warrant to protect themselves or others. Agents can also do a "walkaround" with a canine without a warrant to protect themselves or others. However, they may not search a vehicle without probable cause, consent or a warrant. The same rules apply, in general, to individuals in the vehicle, including the officer safety provisions. Additionally, the agent can require persons to exit the vehicle for safety purposes. Agents will also frequently make use of portable radiation detection equipment - it's entirely passive and unnoticeable unless activated.

The first part of this response that is disingenuous involves the ridiculous assertion that a canine walkaround is conducted for anyone's safety:

"Agents can also do a "walkaround" with a canine without a warrant to protect themselves or others."

The fact of the matter is the Border Patrol trains their dogs to detect drugs and uses brief seizures at internal immigration checkpoints as a pretext to look for drugs absent suspicion. This despite the fact SCOTUS ruled drug checkpoints to be illegal in City of Indianapolis v. Edmond.

Instead, the Border Patrol relies upon an unrelated case involving a traffic stop by local police based upon probable cause to justify the use of drug dogs at suspicionless immigration checkpoints. I've blogged about this particular aspect of internal Border Patrol operations before and include a video below:

The second part of the Border Patrol's response that made me sit upright was this:

"Additionally, the agent can require persons to exit the vehicle for safety purposes."

While this statement may be true if agents have probable cause to believe a crime has been committed, it's not true for the vast majority of cases where Border Patrol agents demand individuals exit their vehicle.

Referring back to U.S. v Martinez-Fuerte, the Supreme Court made it clear they were only authorizing internal immigration checkpoints (at permanent facilities) because the scope and duration of the seizure(s) were sufficiently limited as to be minimal and hence not unreasonable (in their opinion). The factual basis in the case under review only involved very brief questioning regarding immigration status. The seizures did not include the use of drug sniffing dogs or a requirement that individuals exit their vehicle in the absence of probable cause. In fact, the court went so far as to state:

"The principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop."

Given this background information and the Border Patrol's formal response to these questions, it should be clear that agents routinely exceed the scope of anything the U.S. Supreme Court authorized in U.S. v. Martinez-Fuerte. As such, the manner in which such checkpoints are routinely conducted is patently unreasonable and shouldn't be suffered by a free people.

The remaining questions from the San Juan City Council appear below along with the Border Patrol's response:

Deputy Chief Patrol Agent Joseph W. Giuliano presented this list of answers to frequently asked questions to the San Juan County Council March 18, 2008.
1. What is the Border Patrol?

The Office of Border Patrol (OBP) is one of three enforcement components of the Department of Homeland Security's (DHS) Bureau of Customs and Border Protection (CBP). The Border Patrol is responsible for securing our nation's borders between, or otherwise away from, the lawful ports of entry. Another CBP component, the Office of Field Operations (OFO), secures the borders at those ports of entry. CBP Air and Marine Operations supports both OBP and OFO in those specialized environments.

The Immigration Act of March 3, 1891 represented the United States' first truly comprehensive immigration legislation. Among its significant provisions, it established the Bureau of Immigration under the Treasury Department and allowed for the creation of rules governing the inspection of persons arriving in the United States from contiguous countries. The subsequent 33 years saw the passage of a panoply of legislation establishing increasingly restrictive immigration controls.

This culminated in the passage of the Immigration Act of May 24, 1924. This litany of legislation was accompanied by a corollary increase in the numbers of prospective immigrants circumventing the prescribed processes for admission into the United States - illegal immigration burgeoned dramatically.

During the 1891 to 1924 period, various attempts were made to safeguard the borders and stem the increasing flow of illegal immigrants and contraband smugglers. The first such group was a force of Mounted Watchmen that was loosely formed circa 1904 and was first Congressionally funded in 1915.

After passage of the Act of 1924, Congress realized that it had overlooked an enforcement provision for that legislation. To correct that oversight, Congress passed a Labor Appropriations Act four days later to create the United States Border Patrol through a combination of direct hiring and assimiliation of the Mounted Watchmen. Thus, the Border Patrol came into existence on May 28, 1924 as an immigration enforcement agency.

The Border Patrol was transferred to the Department of Labor in 1933 and, as a national security measure, to the Department of Justice in 1940. The primary immigration mission remained unchanged, although ancillary involvement in the interdiction of drug and other contraband smugglers came about as a consequence of the environment in which immigration enforcement was conducted.

The creation of DHS in the wake of 9/11 terrorist attacks was the most significant, non-military governmental reorganization since the Truman-era and included the consolidation of the various border security agencies into CBP. On March 1, 2003, the Border Patrol became a component of CBP and its primary mission was redefined as the prevention of the entry of terrorists and/or their implements of terrorism into the United States between or otherwise around the legitimate ports of entry. Despite this redefinition, OBP retained its traditional immigration and drug enforcement missions.
2. Are Border Patrol agents police officers?

Border Patrol agents are federal law enforcement officers. Although some states also recognize them as state peace officers, Washington does not. Thus, Border Patrol agents have no inherent authority to enforce state and local laws other than that vested in an ordinary citizen. However, upon a lawful request for assistance from a state or local law enforcement officer, a Border Patrol agent may furnish appropriate assistance, including as necessary, effecting an arrest for a violation of state law upon the specific demand of that state or local officer.

3. What authority do Border Patrol agents have?

Border Patrol agents' authority is derived from §235 and §287 of the Immigration and Nationality Act (INA) of June 27, 1952, as codified in Title 8, United States Code (USC), §1225 and §1357. respectively. Additionally, the Commissioner of Customs and Border protection has embued Border Patrol agents with Customs enforcement authority pursuant to 19 USC §140(i). This discussion will focus on the subsections that are most relevant to ferry operations.

* USC §1225(2)(1) authorizes Border Patrol agents to, among other things, "...board and search any vessel, aircraft, railway car, or other conveyance or vehicle in which they believe aliens are being brought into the United States."

...(1)"to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States:"

...(2) " to arrest any alien who in his presence or view is entering or attempting to enter the United States, in violation of any [immigration] law or regulation...if he has reason to believe that the alien...is likely to escape before a warrant can be obtained..."

...(3) "within a reasonable amount distance from any external boundary of the United States, to board and search for aliens any vessel... railway car, aircraft, conveyance, or vehicle and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, to prevent the illegal entry of aliens..."

...(4) and

...(5)...

1. "for any offense against the United States, if the offense is committed in the officer's or employee's presence, or

2. for any felony cognizable under the laws of the United States, if the officer or employee has reasonable grounds to believe that the person to be arrested has committed or is committing such a felony.

...if the officer or employee is performing duties relating to the enforcement of the immigration laws at the time of the arrest and if there is a likelihood of the person escaping before a warrant can be obtained for his arrest."

4.What are Border Patrol checkpoints?

First, let's examine why a discussion of ferry terminal operations would include the term "checkpoint," given that the expected association would be with a place where cars and trucks are inspected. Ferries operating on waterways are the functional equivalents of buses operating on paved highways. They are treated identically for checkpoint purposes. Near the southwestern border, buses routinely stop for inspection at Border Patrol highway checkpoints - ferries are subject to the same scrutiny under the same seat of procedures and legal parameters. Therefore, we will use the word "checkpoint" in referring to ferry operations, as this is what they effectively are.

Border Patrol checkpoints are places where all traffic is required to stop for the purpose of inspection for aliens not lawfully entitled to be or remain in the United States. They may take the form of permanent or tactical checkpoints.

Permanent checkpoints are places that operate continuously and are characterized by established infrastructure such as buildings, permanent traffic revisions and sophisticated traffic warning signage. They are not portable.

Tactical checkpoints are short-term operations that are characterized by a lack of permanent infrastructure, entirely mobile signage and temporary traffic revisions. They generally operate for only a few hours at a time and then for a specific tactical purpose. The Blaine Border Patrol sector has no permanent checkpoints, but has operated tactical checkpoints for several years. these have been used with some regularity on highways, and, to a significantly lesser extent, at ferry terminals. They are not new, although they are now appearing with some greater frequency.

5. What authority does the Border Patrol have to run checkpoints?

In examining checkpoints, it is important to distinguish them from "roving patrol stops." A roving patrol stop is one in which agents on patrol select a specific vehicle - automobiles, trucks, buses, boats, even aircraft - from all others then on the road, in the water, or in the air to be stopped for further examination. The courts have long held that such stops must be prefaced on "...specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens, who may be illegally in the country." This "reasonable suspicion" standard falls short of probable cause, but is nevertheless a standard that clearly prohibits arbitrary or capricious stops.

Checkpoints require all traffic to stop, and, as such, are not subject to selectivity on the part of the agent(s) as are roving stops. There is no explicit statutory authority to conduct checkpoint operations. This authority has evolved consequent to numerous court decisions weighing these tactics with Fourth Amendment considerations. Additionally, the courts have held that "reasonable suspicion" is not required at temporary (tactical) checkpoints, as long as the checkpoint is recognizable as such, has clear traffic revisions, is appropriately lighted and is sufficiently visible as to allow approaching motorists to see that other vehicles are being stopped and that Border Patrol agents are operating the checkpoint.

6. Why did the Border Patrol choose to run a checkpoint recently at the Washington State Department of Transportation (WASDOT) ferry terminal at Anacortes

Blaine Sector is aware of a number of incidents in which persons are/or contraband have arrived in the San Juan Islands from Canada contrary to law and that were subsequently intermingled with legitimate ferry traffic to further the illegal entry to the mainland. Intelligence elements have developed information that terror-related organizations have been exploring using established human and drug smuggling enterprises to facilitate the unlawful passage of their personnel into the United States. As the ferry system has been previously exploited by trans-border criminal enterprises, we must consider the possibility that it may also be exploited by terror organizations.

We must also consider that the area geography and resource limitations make it unreasonable to believe that all illegal entry attempts are stopped at the actual land or marine border. The solution to this is "defense-in-depth." The ferry terminal is a second tier in that enforcement posture.

7. Does this checkpoint mean that Border Patrol agents will be doing sweeps through Friday Harbor or any other community?

The Border Patrol mission is focused on security at and near the border. Checkpoint operations support that mission. Roving patrols of urban areas, worksite enforcement and identification or apprehension of domiciled aliens are not part of that mission - those activities are the province of Immigration and Customs Enforcement (ICE). Thus, checkpoints are exactly that and nothing more.

8. Will there be more such checkpoints?

Yes. They will be operated from time to time at the Anacortes terminal and, in the near future at other terminal, as well as on border area highways.

9. What can I expect at a checkpoint?

You will be greeted by a uniformed Border Patrol agent who may ask basic questions such as: "How are you today?" or "Where are you going?" etc. You will be expected to state your nationality and citizenship and could be asked to provide identification. If the agent is satisfied that there is no suspicion as to your right to be or remain in the United State, he/she will thank you for your cooperation and allow you to proceed. The entire interaction usually takes less than 30 seconds.

If further information is needed, you may be asked to pull aside to a secondary inspection area. A brief interview will occur, usually less than two minutes in length. This may involve records checks. Unless information is disclosed requiring further action, you will be thanked for your cooperation and allowed to proceed.

10. Do I have to carry a passport?

No. But you should always have some sort of verifiable photo identification. Certainly, if you are driving, you should have a valid driver's license with you. If you are a lawful immigrant 18 years of age or older, the law requires you to carry evidence of alien registration at all times. Failure to do so can result in a fine or your being arrested.

11. Am I required to answer the agent's questions at the checkpoint?

No person can be required to give evidence that incriminates themselves - that is a constitutional right. Neither can any public official compel or coerce such a statement if the person being questioned refuses to give one voluntarily. However, the law is quite clear that agents can interrogate any person who is an alien or who the agent believes to be an alien as to his right to be or remain in the United States. A refusal to answer could be construed as an articulabel fact supporting a level of suspicion to further investigate and possibly to arrest, depending on the totality of the circumstances at hand.

12. How long does it take to go through a checkpoint?

We have timed the unloadings of the domestic-only ferries and have found that, at times when the checkpoint is not there, it takes about five to seven minutes for the last vehicles to disembark. Sometimes it can take a little longer, but not often. When the run is international, it takes a bit longer, usually about 15 minutes, sometimes less, occasionally a few minutes more.

We have also timed the checkpoint operations and have found that, about half the time, they add five to ten minutes to the regular disembarkation time. The rest have taken longer. The longest time thus far has added 30 minutes to the time, due, at least in part, to the congestion created when two ferries arrived within a few minutes of each other. The next two longest times added about 15 to 20 minutes to the disembarkation time.

13. Can the agents search me or my car at the checkpoint?

An agent can make a visual inspection of a vehicle insofar as what is ordinarily visible from outside the vehicle. If they see something that constitutes a clear and present danger to themselves or others, they may act immediately and without a warrant to protect themselves or others. Agents can also do a "walkaround" with a canine without a warrant to protect themselves or others. However, they may not search a vehicle without probable cause, consent or a warrant. The same rules apply, in general, to individuals in the vehicle, including the officer safety provisions. Additionally, the agent can require persons to exit the vehicle for safety purposes. Agents will also frequently make use of portable radiation detection equipment - it's entirely passive and unnoticeable unless activated.

14. What if I don't want to stop at the checkpoint?

Fleeing a checkpoint is a felony. 18 USC §758 states: "Whoever flees or evades a checkpoint operated by the Immigration and Naturalization Service, or any Federal law enforcement agency, in a motor vehicle and flees Federal, State, of local law enforcement agents in excess of the legal speed limit shall be fined under this title, imprisoned not more than five years, or both." State and/or local officials may also file additional charges at their discretion with respect to offenses committeed while fleeing the checkpoint.

15. What if I need more information or just want to talk to someone about this whole issue of checkpoints and my community?

Email Joe Giuiliano, the deputy chief at joseph.w.giuliano@dhs.gov Blaine Sector will also address recognized civic groups and organizations at legitimate forums. We are custodians of the public trust and you are entitled to know what we are doing and why.

It should be noted that Joe Giuiliano, the Border Patrol contact person for these responses, no longer works for the Border Patrol. He was arrested on multiple counts of child rape in October 2008.

Comments:

Comment from:
IBMMuseum [Visitor]

"Deputy Chief Patrol Agent Joseph W. Giuliano presented this list of answers to frequently asked questions to the San Juan County Council March 18, 2008"

Deputy Chief Patrol Agent Joseph W. Giuliano is arrested 7 months later and admits he committed child rape of a 14-year old girl staying in his home 24 times (so the contact address above *won't* work)...

My question on #9 is if the Border Patrol "greeting" includes identifying themselves and the agency they work for. At least one of the vehicle stops I experienced the Border Patrol agent did not. And the "greeting" wasn't even in English.

For #10, a U.S. Legal Permanent Resident over the age of 18 is supposed to carry their Resident Card, but failure to carry it is not a deportable offense. Many I know (including my wife) carry a copy while the card is safely at home, because the card is close to $400 and a royal pain to replace. Lastly, if an LPR gives a false claim to U.S. citizenship it is a lifetime ban from the United States, with no possible waiver.

2009-01-19 @ 17:26

Comment from:
IBMMuseum [Visitor]

Searches or seeing a weapon at a checkpoint in New Mexico could prove interesting. If otherwise allowed to possess a weapon, a New Mexico resident can have a fully loaded gun, concealed or not (no conceal permit needed, but if not held, the weapon must be unconcealed at the time of exit from the vehicle if on your person) that they do *not* have to declare to an officer stopping the vehicle. Without a declaration of citizenship, the Border Patrol officer might wrongly proceed further to detain the vehicle occupants having sighted a weapon (U.S. citizens and Legal Permanent Residents can lawfully be in possession of a weapon; the undocumented cannot).

The federal view of firearms seems to be in a state of flux- now legal to carry concealed in some National Parks- from what I read- not legal in federal buildings within those parks.

Looks like you can spend the day enjoying the park while carrying concealed, but if you want to take a leak in a US Govt outhouse or modern facility- you better make other plans.

Alex
Port Hadlock

2009-01-20 @ 12:18

Comment from:
Liberty [Visitor]

Know that one is only required to stop because of the stop sign and not required to answer any questions. One may express their rights by stating, "I do not consent to being detained." and persist with that statement along with, "Am I free to leave?" or "I am leaving now." Any answering of their questions implies consent on your behalf to seizure and questioning.

Local group opposes suspicionless, internal checkpoints and roadblocks on the Olympic Peninsula of Washington State.

Link next to my name above

Alex
Port Hadlock

2009-02-19 @ 19:06

Comment from:
Sandra Berenice Ramos [Visitor]

Why are u trying to get rid of Mexicans? Yes i am a Mexican and I'm legal. If there was a day with no Mexicans you would regret sending them because they are the ones who are killing themselves to keep their family going and you white folks are illegal too because you weren't born here in the US you came from some where else. You don't know how it feels for parents to be worried that immigration will appear to your house and take them and leave the ones who are legal. They should take the ones that have done bad things not the people that help this State stay on their god damn feet!!!!

2009-03-30 @ 14:08

Comment from:
Wretched Gnu [Visitor]

"A refusal to answer could be construed as an articulabel fact supporting a level of suspicion to further investigate and possibly to arrest, depending on the totality of the circumstances at hand."

Legally speaking, this is gibberish. No exercised right (the refusal to answer) can ever be construed as suspicious behavior.

This writer attempts to fudge this fact by reading such suspicion within a "totality of circumstances" that may give genuine rise to suspicion. This is meaningless, however, since such a scenario already presumes the existence of some other probable cause, in which case an agent needs no further "circumstances" to justify a search.

Contrary to what the Patrol suggests here, refusal to answer is never probable cause, no matter if the (non)-action is considered by itself or in conjunction with a "totality" of other circumstances.
Those other circumstances either provide probable cause or they do not. The exercise of one's rights does not modify the answer to that question.

2009-04-19 @ 13:05

Comment from:
Polmpooee [Visitor]

Here is a link to a form you can hand to a BPA or Hiway Patrol Officer. I am not sure how ity would stand up in other States, but it should give them - the BPA and Hiway Partrol - something to think about.

http://www.freedom-school.com/luis-ewing/arrest-or-free-me-flyer.pdf

2010-12-11 @ 08:35

Comments are closed for this post.

Roadblock Revelations

While I refer to court cases along with state and federal law frequently in this blog, nothing written here should be construed as legal advice. I am not an attorney. Rather, I'm someone concerned about the growing disregard for individual rights present at all levels of government.

My conclusions are my own based upon personal experience and research. The law is made purposely complex however and varies significantly from place to place and circumstance to circumstance.